1. Right to Information Act, 2005 ICAI – BOS – Gawahati | 2013 Right to Information Act, 2005 Institute of Chartered Accountants of India Paper presentation -­‐ National convention – Guwahati Introduction Enactment of Right to Information Act, 2005 has ushered a new era leading us towards the development of the participatory democracy. Right to Information implicitly forms part of fundamental rights guaranteed by the Constitution of India. Article 19 (1) (a) dealing with freedom of speech and expression is deemed to contain the basis of RTI. Democracy in real terms requires public to act as a sovereign force. Abraham Lincoln in his famous Gettysburg Address said that democracy is government ‘of the people, for the people and by the people.’ RTI is the “Oxygen of Democracy” – Gives meaning to a participatory democracy. The conceptual roots of democracy lie in Articles 23 and 25 of the Universal Declaration of Human Rights, 1948 and in Part III and Part IV of the Constitution of India. Explicit exercise of this right was not possible due to its derivative and implicit existence within the Constitution. This facilitated the need of a specific legislation enabling the citizens to enjoy the right available to them. The same message echoed in the juristic exposition by Justice Mathew in Kesavananda Bharati v. State of Kerala stated in these prominent words like: “Fundamental rights themselves have no fixed content, most of them are empty vessels into which each generation must pour its content in the light of its experience.” Access to information held by a public authority was not possible until 2005. Official Secret Act, 1923 acted as a remnant of colonial rule shrouding everything in secrecy. The common did not have any legal right to know about the public policies and expenditures. This culture of secrecy resulted in prolific growth of corruption and unscrupulous diversion of the public money was the order of the day. Under such conditions, public and various NGO’s demanded greater access to the information held by public authorities. The government acceded to their demand by enacting RTI Act, 2005. This paper will be comprehensive in throwing light on its evolution, enactment, development and its post implemental issues. Constitutional reference on RTI Act: The right to information has not been expressly provided in the constitution. It is derived from the Article 19 (1) (a) -­‐ Protection of certain rights regarding freedom of speech, etc.-­‐ Let us now see some important cases, which raised RTI to the status of a constitutional right. Upon a thorough analysis it can be safely stated that direction towards the realization of RTI within the constitutional ambit incepted right from the verdict in Hamdard Dawakhana v. Union of India. Supreme Court for the first time declared RTI to be part of Article 19 (1) (a) in Bennett Coleman v. Union of India, where it held Newsprint Control Order of 1972-­‐1973 issued under the Essential Commodities Act, 1955 to be ultra vires Article 19 (1) (a) of the constitution. Ray, CJ in the majority judgment opined that, “It is indisputable that by freedom of the press is meant the right

2. Right to Information Act, 2005 ICAI – BOS – Gawahati | 2013 of all citizens to speak, publish and express their views. The freedom of press embodies the right of the people to read.” Here what is refereed as ‘right of the people to read’ refers to the right of the readers to get the information. The major breakthrough: In S. P. Gupta v. Union of India case, the apex court imparted constitutional status to RTI. Further, the Supreme Court in a historic decision provided the voter’s right to know the antecedents of the candidates. Dawn of RTI: MKSS -­‐ Mazdoor Kisan Shakti Sangathan (who demanded for the copies of financial records of expenditure incurred in the local government) was formed in Rajasthan, which ushered the RTI act. In response to it State Governments such as Goa (1997), Tamil Nadu (1997), Rajasthan (2000), Karnataka (2000), Delhi (2001), Assam (2002), Maharashtra (2003), Madhya Pradesh (2003) and Jammu, Kashmir (2003) introduced the Right to Information Act. Maharashtra Right to Information Act was considered as the model act in promoting transparency, accountability and responsiveness. Tamil Nadu Act was considered as the most innovative one. The Government of India introduced the Freedom of Information Bill, 2000 (Bill No.98 of 2000) in the Lok Sabha on 25th July, 2000. National Advisory Council (NAC) was set up by the United Progressive Alliance (UPA) Government, which came at the centre in 2004. FoI Act was a very weak law and did not confer the deserving status of constitutional status to RTI. But later on the government decided to repeal the FoI Act, and enacted a new legislation, the Right to Information Act, 2005, to provide an effective framework for effectuating the right of information recognized under Article 19 of the Constitution of India. Objectives of RTI act, 2005 1. Greater Transparency in functioning of public authorities 2. Improvement in accountability and performance of the Government. 3. Promotion of partnership between citizens and the Government in decision making process; and 4. Reduction in corruption in the Government departments. Important provisions in RTI act: Scope of application: Perusal of the Act clearly signifies that it is applicable both to Central and State governments and all public authorities. A “public authority” which is bound to furnish information means any authority or body or institution of self-­‐ government established or constituted (a) by or under the Constitution, (b) by any other law made by Parliament, (c) by any other law made by State Legislature, (d) by a notification issued or order made by the appropriate Government and includes any (i) body owned, controlled or substantially financed, (ii) non-­‐government organizations substantially financed, -­‐ which, in clauses (a) to (d) are all, directly or indirectly funded by the appropriate Government. Meaning of Information: Section 2 (f) of the Act defines information as any material in any form, including the records, documents, memos, e-­‐ mails, opinions, advices, press releases, circulars, orders, log books, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be

3. Right to Information Act, 2005 ICAI – BOS – Gawahati | 2013 accessed by a public authority under any law for the time being in force. Definition of “Right to Information” The “right to information” statutorily refers to as a right to information accessible under the Act which is held by or under the control of any public authority and includes a right to (i) inspection of work, documents, records, (ii) taking notes, extracts, certified copies of documents and records, (ii) taking separate samples of material, (iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device. Maintenance of Publication of books and records: Proactive disclosure of information by the public authorities has been provided under s.4 (1) of the Act. The provision castes a duty on public authorities to maintain records for easy access and to publish within 120 days of enactment of the statute the name of the particular officers who should give the information and in regard to the framing of the rules, regulations etc. Request for information: Section.6 permits persons to obtain information in English or Hindi or in the official language of the area from the designated officers. The person requesting for information is not required to give any reason for the request and personal details. Disposal of request Section 7 of the Act requires the request to be disposed of within 30 days provided that where information sought for concerns the life or liberty of a person, the same shall be provided within 48 hours. A request rejected shall be communicated under s. 7 (8) giving reasons and specifying the procedure for appeal and the resignation of the appellate authority. Information is exempted from disclosure where it would disproportionately divert the resources of the public authority or would be detrimental to the safety and preservation of record in question. Exemptions from the disclosure of information There are certain sorts of information, which are exempted from disclosure, in order of not compromising with national security and integrity. Their disclosure might hamper the very existence of the state as well as detriment the national interests. Section 8 exempts from disclosure certain information and contents as stated in sub clauses (a) to (j) thereof. Information expressly forbidden by any court of law or tribunal or the disclosure of which may constitute contempt of court information which could impede the process of investigation or apprehension or prosecution of offenders are some of those which are exempted from disclosure. It is significant to note that the Act is not applicable to certain intelligence and security organizations contained in the Second schedule of the Act. However proviso to s. 24 (1) provides that in case the demand for information pertains to allegations of corruption and human rights violations, the Act shall apply to such institutions. Other important provisions v s. 12 and 15 provide for the constitution of Central Information Commission and State Information Commission respectively. v s. 18 deals with powers and functions of the Information Commissions. v s. 20 provides penalties for non – furnishing information as required by the Act in a sum of Rs. 250/-­‐ per day but not exceeding Rs. 25000.

4. Right to Information Act, 2005 ICAI – BOS – Gawahati | 2013 v s. 21 states that no suit or prosecution or other legal proceeding shall lie against any person for anything which is done in good faith or intended to be done under the Act or rules. v s. 22 overrides the Official Secrets Act, 1923 or ant other law for the time being in force insofar as they are inconsistent with the Act. v s. 23 bars all courts from entertaining any suit, application, or other proceeding in respect of any order made under the Act and every order under the Act should be first appealed against. v s. 25 imposes an obligation on the CIC and the SIC to prepare an annual report on the implementation of the provisions of the Act in that year and forward it to the appropriate government. Deficiencies in the Right to Information Act, 2005 v The Act provides for appointment of Public Information Officers in each of the public authority institutions at different levels, for free flow of information. There was delay in such appointments unfortunately even after the lapse of the time limit mandated by the Act. v There have been grievances of the applicants that information is not provided to them in their regional language. This is against the statutory spirit contained in s.6 (1) of the Act, which makes it clear that information is to be provided in Hindi or English or in the official language of the area in which the application is being made. v Logical reasons for the rejection of the requests seeking information are not being provided as required by s. 7 (8) of the Act. v Moreover, exemption clause contained in s. 8 of the Act is being misused to veil the misdeeds in the name of secrecy essential for national security, integrity etc. v There is no specific safeguard for the protection of person from the harm he may suffer after seeking the information through the Act. There should be promulgation of some safeguard in this regard, so that one can resort to using the Act fear free. RTI – an antidote for corruption: Under the RTI regime, there is unprecedented transparency in the working of public departments. As a result, there is better understanding of the decision making process and greater accountability of government. Even a short random listing would demonstrate the enormous potential power of information, if it be placed in the hands of citizens, to combat corruption that they experience in their daily lives. Conclusion: RTI act being the most predominant act of the decade has been carved clinically in order to bring corruption free governance with utmost transparency and enhancing participative democracy. Lets use RTI and educate people exponentially. -­‐ Aadhit Balaji B SRO0256160 aadhit.balaji@gmail.com Mobile No: +91 80562 02127

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